Religious Courts and Rights in Plural Societies: Interlegal Gaps and the Need for Complex Concurrency

15(2) Law and Ethics of Human Rights 259-285 (2021)

https://doi.org/10.1515/lehr-2021-2027

This article interrogates certain assumptions made about state legal pluralism, paying particular attention to what Cover calls “jurisdictional redundancies” between the courts. It argues that far from being a pseudo-monist arrangement, state legal pluralism are potentially productive site of interlegality. In doing so, I support concurrent jurisdictional allocations, arguing that exclusive jurisdiction could result in what I call an interlegal gap, whereby instead of inter-penetration of norms and production of reconciliatory principles, there is a justice gap whereby litigants may find themselves unable to obtain appropriate legal recourse including when neither court is willing to assume jurisdiction over the matter. This requires us to see the relationship between religious courts and non-religious courts through the more mundane but more practical lens of jurisdictional overlaps and competition, rather than through the more abstract framing of normative or even civilizational clashes. Accordingly, I argue that concurrent jurisdiction and interlegality have greater potential to strike a balance between individual and group rights and could be more protective of religious diversity. In other words, I argue for a closer, rather than a more separate, relationship between religious and non-religious courts, while denying that a hierarchical relationship where religious courts are subordinated to non-religious courts is the only way to protect rights.